Federal Contractors Required to Provide Paid Sick Leave Starting in 2017

This past Monday, President Obama signed an Executive Order that, beginning January 1, 2017, mandates all federal contractors and subcontractors to provide up to 30 hours of paid sick leave for their employees. Workers for contractors subject to this Executive Order will be entitled to earn 1 hour of paid sick leave for every 30 hours of work performed, up to a maximum of 56 hours (7 days) of paid sick leave per year. 

Workers who earn paid sick leave will be entitled to use that time to cover absences resulting from: 

1. illnesses, injuries, or medical issues; 
2. the need to obtain diagnoses, care or treatment from a healthcare provider; 
3. the care for a child, parent, spouse, domestic partner or "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship" [read, non-adopted step-children, step-parents, etc.], who is seeking a medical diagnosis, or is in need of medical care or treatment; or
4. domestic violence, sexual assault, or stalking.

If a federal contractor already has a collective bargaining agreement in place, or is subject to a state law that provides greater mandatory leave entitlements than this Executive Order, then the provisions of the collective bargain agreement or state law will govern. 

If you are an employer who does any contract work with any federal agency, these requirements will start appearing in your contracts after January 1, 2017, so plan accordingly as that date nears.

Remember also that the provisions of this Executive Order do not supplant or supersede a qualifying employer's obligations to provide reasonable accommodations to a disabled employee under the Americans with Disabilities Act, or provide eligible workers with FMLA leave when necessary. Beginning in 2017, these new paid sick leave requirements will need to be incorporated into federal contractors' existing legal leave obligations. For example, even though federal FMLA leave is not mandated to be paid, if an employee of a federal contractor accrues 56 hours of paid sick leave time under this Executive Order, then takes FMLA leave for his or her own serious health condition, the first seven days of the FMLA may have to be paid. Federal contractors will have to decide whether they want to implement new policies to address these types of issues, such as requiring employees to exhaust all accrued paid-sick-leave under this Executive Order while on an FMLA-qualifying leave. 

US Supreme Court: First Amendment Bars Discrimination Suits By Ministers Against Religious Employers

Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination.  In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government. 


This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church.  The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers.  "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty.  Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned."  "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church.  The Church only appoints "lay" teachers when no "called" teachers are available. 


Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church.  Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.  


In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave.  On January 25, 2005, Perich notified the school principal that she was ready to return to work.  The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom.  On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher. 


Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005.  On that date, Perich arrived at the school and the principal asked her to leave.  Later that day, the principal telephoned Perich and told her that she was likely going to be fired.  Perich responded that she had contacted an attorney and intended to pursue her legal rights. 


On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February.  The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."


Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA).  Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.


In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception.  Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.  


The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment.  The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers.  The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.  Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.  By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."


Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional. 


You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Eastern District of PA: ADA Claim For Failure To Provide Disabled Employee With A Cell Phone May Be Sent To A Jury

In the case of Boandl v. Geithner, No.: 09-4799 (E.D. Pa. 11/2/2010), the U.S. District Court for the Eastern District of Pennsylvania held that a jury was permitted to hear the claims of Richard Boandl, a disabled former IRS Revenue Agent, in which he alleged that the IRS had failed to engage in the interactive process required by the Rehabilitation Act and the Americans with Disabilities Act (ADA), when his immediate supervisory summarily denied his verbal request to provide him with a cell phone to assist him in the performance of his investigative duties.

At a young age, Boandl had been infected with polio, and as a result, has been disabled for most of his life. He has a severe limp, cannot stand for more than a few minutes at a time, and requires the use of a cane to walk short distances and a wheelchair to travel distances of more than twenty yards. Boandl had been employed as a Revenue Agent with the IRS from 1983 until 2004.

In late 2003, Boandl spoke to his immediate supervisor and requested that the IRS issue him a cell phone as a reasonable accommodation for his disability. Boandl alleged that he needed a cell phone to assist in his investigative duties, which required traveling outside his office to locate tax non-filers and visit witnesses. Boandl told his supervisor that because of his disability, it was difficult for him to repeatedly have to get in and out of his car, walk and stand while in the process of trying to locate, and then use, a working pay phone while out of the office. Boandl alleged that his supervisor immediately denied his request. Boandl then emailed a copy of his cell phone request to his supervisor on or about December 11, 2003. On January 20, 2004, Boandl's supervisor provided him with a written memorandum officially denying his request for a cell phone on the basis that the IRS did not issue cell phones to any employees holding Boandl's position, and that the ability to be able to return phone calls while in the field was not an essential function of Boandl's position.

In denying the government's subsequent Motion for Summary Judgment on this issue, the Court found that Boandl had produced sufficient evidence that would allow a jury to conclude that the IRS had failed to engage in the interactive process required by the Rehabilitation Act and the ADA because Boandl's supervisor had summarily denied his oral request for an accommodation. Moreover, the Court noted that the IRS' stated reason for denying Boandl' request, i.e., that the need to return phone calls while in the field was not an essential function of his position, was not the sole reason for Boandl's cell phone request. Rather, Boandl had specifically alleged that he had investigative duties while out of the office, such as locating non-tax filers and locating witnesses, which required the use of a cell phone. The Court held that because the government had failed to present any evidence that these tasks were not essential functions of Boandl's job, it was not entitled to summary judgment on this claim. Therefore, a dispute existed over whether the tasks identified by Boandl were essential functions of his position, which was required to be resolved by a jury.

The lesson that employers and HR specialists need to take away from this case is that summarily denying requests for accommodation under the ADA or the Rehabilitation Act is never good practice. Rather, each request, even if it may facially appear to not require an accommodation, should be given its due consideration and analysis. A summary denial of any request for accommodation, especially one that is made verbally, can leave an employer exposed to a claim for failure to engage in the required interactive process.

Western District of PA Dismisses Title VII and ADA Claims for Insufficient Facts

In the case of Robuck v. Mine Safety Appliances Co., No.: 2:10-cv-00763 (W.D. Pa. 11/3/2010), the U.S. District Court for the Western District of Pennsylvania dismissed claims of retaliation under Title VII and the ADA due to the employee's failure to plead sufficient factual allegations. While the arguments behind Robuck's claims here may have been admittedly weak from a plaintiff's perspective, this case serves as an important reminder of the importance that needs to be paid by a plaintiff's attorney to fact-pleading in the aftermath of the now infamous Twombly and Iqbal decisions.

The employee, Dennis Robuck, claimed to suffer from hypertension that required him to avoid stress and to take long walks on a regular basis, which he often did on his lunch break. He also alleged to have a problem with a female co-worker, Ruth Protzman, who apparently also took walks during her lunch break, as well. Robuck alleged that he made every attempt to avoid Ms. Protzman, and even the employer admitted that up until February of 2007, it had made every effort to keep Robuck and Ms. Protzman separated. One of the ways in which it did this was to allow Ms. Protzman to take her lunch hour at 11:30 AM, while Robuck took his lunch hour at 12:00 PM.

In February of 2007, however, the employer changed Robuck's lunch hour to 11:30 AM. Robuck alleged that the employer failed to accommodate him by changing his lunch hour back to 12:00 PM, despite his continuing complaints. Robuck also alleged that he had made numerous complaints to his supervisor, stating that the employer had given priority to Ms. Protzman over Robuck when attempting to separate them.

On October 29, 2007, Robuck was terminated by his employer, and subsequently received a letter from the employer indicating that had been discharged for willfully disregarding workplace rules.

Robuck subsequently filed suit, alleging that the reason given by the employer for his termination was pretextual, and that he was actually terminated for walking on a road on which the employer believed Ms. Protzman might also have been walking on at the same time. Robuck insisted, however, that Ms. Protzman was not even walking on the road at that time and that she was not even at work on the date of his alleged offense. Robuck alleged retaliation on the basis of sex in violation of Title VII, and retaliation in violation of the ADA.

The employer filed a motion to dismiss, arguing that Robuck had failed to allege sufficient facts to sustain claims of retaliation under either Title VII or the ADA. The District Court agreed, and dismissed both claims. With respect to Robuck's claim that he was treated less favorably by his employer than Ms. Protzman, the Court held that the only real facts alleged by Robuck in his Amended Complaint related to his ongoing dispute with Ms. Protzman and the employer's attempt to keep them apart, which was thwarted by a change in lunch schedule. However, the Court found that "[Robuck's] allegations are little more than generalized complaints of unfairness which do not and cannot constitute protected activity." While Robuck alleged that the employer "always gave priority," to Ms. Protzman, he failed to set forth any facts to "support his conclusory allegation that he complained of sex discrimination to his supervisor or anyone else." Moreover, the Court recognized that "[Robuck's] Amended Complaint is similarly vague in that [the employer's] alleged favoritism towards Ms. Protzman could have been motivated by any number of factors which are not protected under Title VII."

With respect to Robuck's ADA retaliation claim, the Court noted that while "[Robuck] alleges that [the employer] has discriminated against him as a result of his previous complaints of discrimination based on [his] disability . . . [Robuck] . . . provides no indication that he ever mentioned his disability during his discussion with his supervisor . . . or anyone else. Therefore, [Robuck] did not explicitly or implicitly plead that his alleged disability was the reason for the unfairness in which he complains. Accordingly, such complaint does not constitute 'protected activity' to constitute a prima facie case of retaliation." Therefore, the Court dismissed Robuck's ADA claim as well.

Had more care been taken by Robuck's counsel in drafting the Amended Complaint in this case, so as to include more specific facts, circumstances and events, it is possible that the Court would not have dismissed it at a 12(b)(6) stage. At the very least, getting past the pleadings and into active discovery may have allowed Robuck to garner some leverage in which to settle the case. But, a sloppy and imprecise Amended Complaint here served no other purpose but to get Robuck's Title VII and ADA retaliation claims dismissed at the outset. It should also be noted that Robuck received no sympathy from the Court with respect to his request to be allowed to file a Second Amended Complaint to correct these deficiencies. As of the date of the Order dismissing these claims, the Court noted that this case had been in litigation for nearly three years. Given that length of time, the Court held that "[Robuck] and his counsel have had ample time and the necessary means to secure and plead facts to support his claims," and as such, allowing Robuck the opportunity to file a Second Amended Complaint would be, in the Court's own words, "futile."

The lesson is clear - pay close and careful attention to your factual pleadings. The more, the better.

Third Circuit Holds That Difficulty Getting To Work Because of Disability May Require Accomodation Under ADA

On April 8, 2010, the Third Circuit Court of Appeals in the case of Colwell v. Rite Aid Corporation, No.: 08-4675, held that under certain circumstances, an employer may be required under the Americans with Disabilities Act to accomodate an employee's disability-related difficulties in getting to and from work. Specifically, the Court determined that a shift-change, which is requested by a disabled employee in order to ease that employee's ability to commute, would be a type of accomodation required under the ADA.

In Colwell, the employee worked as a cashier for defendant, Rite Aid Corporation. As a matter of personal preference, her available shift hours were from 9:00 AM to 2:00 PM or 5:00 PM to 9:00 PM. Shortly after her hire date, the employee was diagnosed with a medical condition in her left eye that eventually caused her to go blind in that eye. Although the employee was still able to see out of her right and perform all of her duties at work, she informed her supervisor that her partial blindness made it dangerous and difficult to drive at night. Employee provided her supervisor with a note from her doctor, in which it was recommended that employee not drive at night. Employee then requested from her supervisor that she only be assigned day-shifts because she could not drive at night, and because public transportation was not an option for her, as the bus stopped running at 6:00 PM and no taxis were available. Employee's supervisor refused, telling employee that to assign her only day shifts would not be fair to other employees. Following that refusal, employee was forced to have her family members shuttle her to and from work for her night-shifts, which she claimed created a hardship for her family.

Employee filed suit, claiming that Rite Aid had failed to provide her with a reasonable accomodation under the ADA by failing to modify her work schedule. The trial court entered an order dismissing employee's accomodation claim, ruling that because employee did not require any accomodation to perform her job duties once at work, the accomodations employee sought had nothing to do with her work environment or the circumstances in which she performed her work. Thus, Rite Aid had no duty to accomodate employee's commute to and from work.

On appeal, the Third Circuit disagreed, and reversed the trial court's ruling on this issue. Specifically, the Court rejected the trial court's reasoning that "commuting to and from work falls outside the work environment," holding that "the reach of the ADA is not so limited." Rather, the Court noted that the ADA specifically defines the term "reasonable accomodation," to include "modified work schedules" - the exact type of accomodation requested by employee in this instance. Contrary to the trial court's determination, the Third Circuit held, as a matter of law, that "under certain circumstances the ADA can obligate an employer to accomodate an employee's disability-related difficulties in getting to work, if reasonable. One such circumstance is when the requested accomodation is a change to a workplace condition that is entirely within an employer's control and that would allow the employee to get to work and perform her job."

The Court cautioned, however that "our holding does not make employers responsible for how an employee gets to work," but noted that, in this instance, the employee was not asking for help in getting to or from work - rather, she was only requesting a shift-change that would ease her ability commute.